McKay v. H.I.P. of Greater New York

• Decision Date: 02 July 1990
• Citation: 558 N.Y.S.2d 561,163 A.D.2d 280
• Parties: Dorothy N. McKAY, Appellant, v. H.I.P. OF GREATER NEW YORK, et al., Defendants, Rochdale Center, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 561

558 N.Y.S.2d 561

163 A.D.2d 280

Dorothy N. McKAY, Appellant, v. H.I.P. OF GREATER NEW YORK, et al., Defendants, Rochdale Center, Respondent.

Supreme Court, Appellate Division,

Second Department.

July 2, 1990.

Gerald Murray, Melville, for appellant.

Garbarini & Scher, P.C., New York City (Anthony M. Fischetti, of counsel), for respondent.

Before EIBER, J.P., and SULLIVAN, BALLETTA and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, the plaintiff appeals from an order of the Supreme Court, Queens County (Joy, J.), dated June 24, 1988, which denied her motion for reargument, denominated as a motion to renew her motion to vacate her default in opposing the motion of the defendant Rochdale Center for summary judgment dismissing the complaint insofar as it is asserted against it.

ORDERED that the appeal is dismissed, with costs.

In the instant case, the plaintiff did not proffer any explanation as to her failure to submit an affidavit from a medical expert establishing a meritorious cause of action on her original motion to vacate her default. Therefore, her motion, denominated a motion to renew, is, in actuality, a motion for reargument, and no appeal lies from the denial of that motion (see, DeFreitas v. Board of Educ., 129 A.D.2d 672, 514 N.Y.S.2d 433).

While under certain circumstances, a court may, in the exercise of discretion, treat such a motion as a motion to renew despite the fact that movant was aware of the additional facts at the time of the earlier application (see, Oremland v. Miller Minutemen Constr. Corp., 133 A.D.2d 816, 818, 520 N.Y.S.2d 397), there were no factors in this case which would suggest that the Supreme Court should have exercised that discretion (see, McRory v. Craft Architectural Metals Corp., 112 A.D.2d 358, 359, 491 N.Y.S.2d 808). In any event, even if the plaintiff might have been entitled to renewal, she would not have been entitled to vacatur of her default. The affidavits of her medical expert were couched in only the most conclusory terms and failed to establish any causal connection between any alleged malpractice and the plaintiff's injuries. Indeed, they failed to even implicate the defendant Rochdale Center in any of the negligent acts. Furthermore, the plaintiff failed to show that her cause of action against Rochdale Center was not time-barred by the Statute of Limitations (see, CPLR 214-a). Thus, the plaintiff failed to establish that she had a meritorious cause of...